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Regulating Congressional Insider Trading: The Rotten Egg Approach
No full textA 2004 study revealed that the stock portfolios of members of Congress were consistently outperforming those of the investing public. The financial success of federal lawmakers was statistically correlated to the use of nonpublic information obtained while performing legislative responsibilities—reasonably characterizable as insider trading. Cries of dismay over such profiteering by lawmakers have been echoing in the public domain since Samuel Chase, Maryland’s representative in the Continental Congress, directed colleagues to corner the flour market in 1778 after learning that copious quantities of it would be purchased by the government to support the Continental Army. Notwithstanding efforts to apply insider trading law to curb this behavior and the enactment of the Stop Trading on Congressional Knowledge (“STOCK”) Act, fortuitous securities transactions by members of Congress continue to occur in connection with headlining national events; it was recently observed with respect to news of the financial collapse of certain regional banks.
While there is scholarly and political support for laws that would effectively ban such rotten egg behavior, this Article proposes that the conduct be regulated under the statute created with rotten eggs in mind—the Securities Act of 1933. The Securities Act creates speedbumps for persons in a control relationship with issuers who want to sell the issuer’s securities in the secondary market. The speedbumps require both public disclosure and broker inquiry. This Article asserts that senators and representatives are in a control relationship with issuers such that they transcend the status of ordinary investor in the securities law regime. As control persons, federal lawmakers must navigate the obligations established under the Securities Act for such persons before selling their securities in the secondary market. This approach eliminates the legal and evidentiary challenges of insider trading theory, provides a disclosure mechanism that is vastly more effective than that provided by the STOCK Act, and deploys broker-dealers as gatekeepers to ensure that such trades do not undermine the maintenance of fair markets
A Second Chance at Success: Using “Second Look” Laws to Modify Sentences of Juvenile Offenders
No full text“Second look” sentencing laws allow incarcerated individuals to petition to have their sentences reexamined and potentially reduced after they have served a significant period of incarceration. This rehabilitative relief is conditioned upon an offender showing that they have made meaningful positive changes while incarcerated and would not pose a threat to their community if released. Implementing second look laws is particularly appropriate in the context of offenders who have committed crimes as juveniles. The U.S. Supreme Court has recognized that juvenile offenders are less culpable than their adult counterparts and psychological science supports this conclusion. This Comment examines and compares recent second look laws from Washington, D.C., Oregon, California, Delaware, and Florida and suggests that a federal second look law could serve as a model for states to adopt. An ideal federal law would: (1) extend eligibility to all individuals who committed a crime under the age of 25; (2) require an offender to serve 10 years of incarceration before becoming eligible for review; (3) provide opportunities for re-application every 5 to 10 years and allow at least 2 applications; (4) include a list of factors for the court to consider when making its resentencing decision; (5) require that the state give notice of the second look policy to offenders before they become eligible; and (6) guarantee a right to counsel for indigent individuals
